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#1
Daniel Huffman

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I have a request for NACIS 2013: Would anyone be willing to give a presentation on intellectual property law and what we, as mapmakers, need to know? I'm not organizing a session or anything; just something I'd like to see as an attendee. Obviously, intellectual property law varies by jurisdiction, but I expect focusing on US Law and general principles that are applied worldwide would make sense.

 

Over the years, I have picked up advice and done some reading on some of these issues, but I can't say as I feel 100% confident in this area. I am certainly not a lawyer, or otherwise an expert. I think it would be valuable to have a handy reference guide for mapmakers to navigate some of these issues. Whether or not someone gives a presentation, perhaps we could all contribute our knowledge (or ask our lawyer friends) and put something together.

 

Some questions related to the subject:

 

 

1) At what point does your creation become copyrighted?

 

2) Let's say I need to make a map of the borders of Poland in 1935. I find an atlas of European history, I scan a map which has the information I want, georeference it, and trace it the borders off of it. Is that permissible? What if I also trace the coastlines, cities, etc.? How much can I copy from this map on to mine?

 

3) If I take someone else's linework and trace it, as in #2 above, and then distribute a copy of that linework online for free, is that an infringement on their copyright?

 

4) Can someone own the copyright on a data set? If I were given a shapefile by a client, which contained the point locations of their various offices, is that a proprietary data set? Can I ever use that data set again for another map for another client without their permission (and here I mean legally -- it would certainly be polite and professional to ask permission, but is it strictly necessary?)

 

5) If a client pays you to make a map, who owns the copyright to that product?

 

 

I think I know the answers to most of these, but I'm not totally confident. So, I'll put these out here and you can all comment on them.

 

1) In the US, as soon as you make something, it's copyrighted. No need to register or fill out any forms or anything. Registering your copyright can be helpful if you're expecting to need to go to court at some point to defend it, but it's not required.

 

2) In US copyright law there's the idea vs. the expression. The idea – the concept – of what Poland looked like in 1935 isn't copyrightable. The expression of that idea – how you color and style the boundary line – is. That's the aesthetic and personal creative portion, and it would be an infringement for me to copy the whole map, then color everything the same, and use the same typefaces in the same spots, etc. But, I think this is also a bit fuzzy. The reality of geographic data can't be copyrighted, true, but isn't the way we generalize our linework a form of expression? The shape of Denmark is a geographic fact, but in different maps and at different scales, we all choose to draw our line paths in slightly different shapes. So, by tracing that, I might be tracing someone's expression. Especially if the linework is highly artistically stylized.

 

3) Granting that I might be stealing someone's expression, this still may be acceptable I think, under the doctrine of Fair Use. Fair Use is an exception to copyright infringement, and it's pretty much weighed on a case-by-case basis, but among other things, there are 4 factors that can be considered (17 USC § 107)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

 

Grabbing someone's linework, either here or with question #2, does not generally have a negative effect on the map you're copying from. It doesn't lower its value, or stop people from wanting to buy that map (unless you're copying a whole bunch of it and selling your map as an alternative). Also, if you're not copying a lot, the third factor comes in to play (amount and substantiality of the portion used) in your favor.

 

4) I have no idea. I've had a client hand me data (a shapefile) and tell me it was proprietary (it was a list of lat/lon coordinates they'd copied out of a book) and that it was not to be used for any other projects, but I'm not sure if they could legally stop me from doing so. I don't intend to disrespect their wishes; just curious as to whether or not they actually can own intellectual property rights on the shapefile.

 

5) You do, usually, as long as you're an independent contractor and not an employee. If you're an employee, your employer is considered the "author" of the work and owns all copyright. But if you're an independent contractor, you own it, even if it was paid for by someone else. For your client to own the copyright, two things have to happen (17 U.S.C. § 101): 1) you'd have to sign an agreement allowing it, and 2)  the thing you made for them would have to be  "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas." The word atlas is specifically mentioned in the law, but nothing is mentioned about single maps.

 

Ok, so that's what I think I know. I'd be interested to hear from people as to whether or not any of this is correct, and if anyone's got questions to add to this list that maybe we can all try to answer, that would be great! Hopefully we can pool our knowledge into a handy set of answers to common questions.



#2
Dennis McClendon

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Because I have a longstanding interest in IP (and I'm a lawyer by training), I gave such a presentation at the NACIS conference in 1995, but obviously there are many new cartographers since then.  For years I've been thinking I should update and do it again.

 

Essentially you have it right: facts can't be copyrighted (in the US) but expression can.  The 1991 Feist decision made that clear, and also swept away several decades of Second Circuit jurisprudence that had implicitly created a "sweat of the brow" test, implying that mapmakers could not reap where they had not sown.  There were some old Second Circuit decisions suggesting that selection (which names to show on a globe) could be protected.  But there are almost no cases decided since Feist, so we don't really know if that's still good law.

 

A list of lat-long pairs, even collected in a computer file, probably does not meet the Feist test of creativity in expression.  A shapefile starts to be in the gray area because different people will digitize a line differently, but probably falls short of the required creativity until it becomes highly stylized in the manner of a transit map.  When handling "proprietary" data from clients or suppliers, it's not so much IP law that you worry about, but tort and contract law.  Is there an implied duty to protect the trade secrets of your client?  Have they merely licensed it to you for limited purposes?  For a while after Feist, we thought maps might become like software, where breaking the shrink-wrap signaled acceptance of the publisher's license.  That didn't happen with paper maps, but a lot of data sets from folks like Navteq, etc., come with similar conditions.

 

Unfortunately, I have to wind up the same way I did 20 years ago: none of us can afford to find out what the law is.  Legal battles, especially with big companies, are so incredibly expensive that hardly anyone can afford to take one all the way to an appellate court.  Like many areas of the law, there are very few bright lines between what's legal and what isn't, but I no longer worry about much of anything short of "photocopying" a printed map into which the expression has already been integrated.


Dennis McClendon, Chicago CartoGraphics
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#3
mjfoster

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I would like to add a number 6 to this list of murky legal questions.  It is one that arises constantly in my daily work and I have never been clear on the answer.  What are the limitations of aerial photography and remote sensing?  Specifically aerial interpretation, through adding map features and filling in gaps by tracing of features from aerial imagery.  Many readily available aerial photography datasets are slathered with copyright watermarks, or you pay a premium to either get them removed or gain access to higher resolution imagery.

 

Considering the Feist decision, I could see both sides, where an aerial image would be considered factual data in that is a display of what exists on the ground and you are interpreting the data through your own expression, but the imagery itself is creative scientific expression with the collection methods and selected elevations, resolution, correction, and stitching methods used in the creation of large aerial datasets.

 

Would there be any insight into this item?


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#4
Dennis McClendon

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While I am not offering you legal advice, I don't think comprehensive planimetric aerial photography would typically rise to the level of creative expression anticipated in Feist.  Like any human endeavor, aerial photography involves judgment, choices, and skill, but it is usually not an artistic creation of the type anticipated by the US copyright statute.  You might make a different case, however, for the kind of very selective aerial photos one sees in coffee-table art books, that carefully select, crop, and isolate particular landscape patterns or interesting shadows.  Certainly tracing features from aerial photos would seem to be exactly the kind of "compilation of facts" that Feist declares is not a copyright infringement.

 

My thinking on this is somewhat informed by the developing case law on "slavish copy" photos of public-domain paintings. Here's a good Wikipedia article on the Bridgeman case and others.


Dennis McClendon, Chicago CartoGraphics
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#5
David Medeiros

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I would like to add a number 6 to this list of murky legal questions.  It is one that arises constantly in my daily work and I have never been clear on the answer.  What are the limitations of aerial photography and remote sensing?  Specifically aerial interpretation, through adding map features and filling in gaps by tracing of features from aerial imagery.  Many readily available aerial photography datasets are slathered with copyright watermarks, or you pay a premium to either get them removed or gain access to higher resolution imagery.

 

Considering the Feist decision, I could see both sides, where an aerial image would be considered factual data in that is a display of what exists on the ground and you are interpreting the data through your own expression, but the imagery itself is creative scientific expression with the collection methods and selected elevations, resolution, correction, and stitching methods used in the creation of large aerial datasets.

 

Would there be any insight into this item?

 

I'm not an attorney like Dennis, but this seems pretty clear to me... digitzing natural or manmade features caputred in remote sensing (even when the image itself is intended to be an artisitc expression of some kind) can not be an infringement of copyright. Copying the image itself, or even the style or composition of the image would (or could) be.

 

Basically you can't copyright a fact and the real world features and objects in remotely sesned images are facts about the world. This means that while you can not copy and paste a Google air photo into your map background without permission, you can digitize any of the features you see there and include them in your map as you see fit, assuming they were from a publicly viewable image.

 

Dennis, correct me if any of that sounds incorrect.


GIS Reference and Instruction Specialist, Stanford Geospatial Center.

 

www.mapbliss.com

 


#6
Daniel Huffman

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Thanks, Dennis, for the information. It's good to know that I'm roughly on the right page. It is, as you say, quite a grey area. I don't know if you'd be willing to give an updated version of your presentation this year, but I'd certainly like to see it. If I ended up collecting enough good advice that I felt confident sharing it, I'd also be willing to present, myself.

 

I'll add a question myself:

 

7) I have clients who are in other countries. Whose copyright law applies when they hire me to create works? I'm assuming that the answer to this is "things are complicated and you should just hope that you're never involved in an international copyright dispute."



#7
Dennis McClendon

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As far as copyright protection for your work going forward, you are protected in any nation that is a signatory to the Berne Convention (and that's virtually all nations).  Certain procedural matters (which court to sue in, for instance) probably are based on the country of first publication, which (without researching the matter) I think is probably where the creative thoughts are "reduced to writing."  So, where you did the work.  

 

A much stickier question is the one of what nation's laws determine whether you've violated another person's copyright.   My tracing of a UK Ordnance Survey map, for instance, does not give rise to a copyright claim in the US but may very well infringe under UK law.  As best I can tell, this is still a very unsettled area of the law and proceedings under the Berne Convention.  I'll have to do some more reading.  I found a brief summary (PDF), but I can't quite tell what the document is.  It appears to be study notes for a course in international law at Stockholm University. 


Dennis McClendon, Chicago CartoGraphics
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#8
Michael Schmeling

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Wikipedia has a short article about the 'Lex loci protectionis':

 

http://en.wikipedia....hutzlandprinzip

 

If you google the term you find more infos.

 

(The german article is more thorough: http://de.wikipedia....hutzlandprinzip)

 
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#9
Dennis McClendon

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And those of us who watch movie credits frequently read one at the end saying "Country of first publication: United States of America."


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#10
François Goulet

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Basically you can't copyright a fact and the real world features and objects in remotely sesned images are facts about the world. This means that while you can not copy and paste a Google air photo into your map background without permission, you can digitize any of the features you see there and include them in your map as you see fit, assuming they were from a publicly viewable image.

 

Dennis, correct me if any of that sounds incorrect.

 

 

I'm not so sure... By using Google, you implicitly agree to the Terms of Service:

 

2. Restrictions on Use. Unless you have received prior written authorization from Google (or, as applicable, from the provider of particular Content), you must not: (a) copy, translate, modify, or make derivative works of the Content or any part thereof;

 

Is tracing building footprints considered making a derivative work from the content? The image is publicly viewable, but you must agree to not use it to view it. 

 

I may be wrong (and hope I am, because it's a incredible resource) though...



#11
Dennis McClendon

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I don't think tracing building footprints is a derivative work any more than using Google Maps to learn that the street in between Kearny and Sansome is named Montgomery.  You're only appropriating the facts (building shape and size) from Google's imagery, not the expression.  Facts are not the subject of copyright in the US, and I think it would be quite a stretch to say that facts cannot be learned-copied-retained under the EULA.  But I don't know whether there's case law on the subject.


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#12
François Goulet

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I don't think tracing building footprints is a derivative work any more than using Google Maps to learn that the street in between Kearny and Sansome is named Montgomery.  You're only appropriating the facts (building shape and size) from Google's imagery, not the expression.  Facts are not the subject of copyright in the US, and I think it would be quite a stretch to say that facts cannot be learned-copied-retained under the EULA.  But I don't know whether there's case law on the subject.

 

The difference is that Google must be paying a lot to publicly displaying facts... I'm not saying that we shouldn't be using Google to trace building footprints, just that I think that there's a grey line whether we can or not. In court, Google could argue that we are making derivative work and making money off the money they have paid...

 

Having said that, I've made an entire atlas this winter by digitizing maps from other reference maps, only that I used the most precise one I could find as reference and I did my own generalization, since the simplification of boundaries could be view as an artistic expression.



#13
David Medeiros

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I don't think tracing building footprints is a derivative work any more than using Google Maps to learn that the street in between Kearny and Sansome is named Montgomery.  You're only appropriating the facts (building shape and size) from Google's imagery, not the expression.  Facts are not the subject of copyright in the US, and I think it would be quite a stretch to say that facts cannot be learned-copied-retained under the EULA.  But I don't know whether there's case law on the subject.

 

The difference is that Google must be paying a lot to publicly displaying facts... I'm not saying that we shouldn't be using Google to trace building footprints, just that I think that there's a grey line whether we can or not. In court, Google could argue that we are making derivative work and making money off the money they have paid...

 

Having said that, I've made an entire atlas this winter by digitizing maps from other reference maps, only that I used the most precise one I could find as reference and I did my own generalization, since the simplification of boundaries could be view as an artistic expression.

 

 

A Derivative Work is something very specific, and not just any use of some one elses product (http://en.wikipedia....Derivative_work).

 

In my reading of what a Derivative Work is this would need to include major elements of the original work, and only those that are copy right protected to begin with. Since we are saying (correctly I believe) that facts about the world are not copy right protected then copying the foot print of a building or the alignment of a street are not derivative. I think these are more “extractive” and Google would probably have a very hard time making the case that they own the copyright to the shape of things in the world.

 

My guess is that this language in the Terms of Use is mostly boiler plate and only applies to parts of Google’s maps that are their creation, like the interface or the particular map style and symbology. As well as prohibiting you from simply redisplaying the imagery they paid for.


 


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#14
Dennis McClendon

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What David said.  If I use Google Maps (just looking at it, not the routing function) to work out the best route from the hotel to the church, then email that route to a wedding guest, I have not made a "derivative work."

 

If I take a few screenshots of the familiar yellow-and-gray streets, then use those in a complex artwork, I have copied Google's expression of facts and I've made a derivative work.


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